Krishna Kumar Misra vs State of Uttar Pradesh and Others

S.K. Mookerji, J.—Heard learned Counsel for the Petitioner and also learned Counsel for the Respondents.

This Habeas Corpus petition has been filed by Krishna Kumar Misra questioning the validity of the order, passed by the District Magistrate, Kanpur Nagar, u/s 3(2) of the National Security Act, 1980, for preventing the Petitioner from acting in any manner prejudicial to the maintenance of public order, dated 4-1-1993. The detention order together with the grounds of detention were served on the Petitioner in jail on the same day where he was already lodged in connection with an occurrence dated 10-12-1992, without giving details about the occurrence, as has been mentioned, in connection with the communal riot at Kanpur Nagar, which followed the demolition of disputed structure at Ayodhya.

In the petition it has been claimed that the Petitioner is a young boy and is a student. This averment has, however, been disputed by the District Magistrate.

On 12-1-1993 the aforesaid detention order was approved by the State Government and on 13-1-1993 the order of approval was communicated to the Petitioner and the report on the same day was sent to the Central Government. On 151-1993 papers were forwarded to the Advisory Board. On 21-1-1993 the Petitioner made a representation to the State Government and Central Government, which was received on 21-1-1993 by the District Magistrate. Both the representation were sent to the State Government without comments by the District Magistrate and received on 23-1-1993. However, comments were sent by the District Magistrate to the State Government on 3-2-1993, i.e. after a lapse of 11 days from the date representation was sent by the District Magistrate to the State Government. The comments were received by the State Government on 4-2-1993, 7-2-1993 was a holiday and on 8-2-1993 papers were put up and considered by the Dy. Secretary, Special Secretary and Home Secretary and ultimately on 9-2-1993 the representation of the Petitioner was rejected by the State Government on 10-2-1993. The State Government communicated the order of rejection.

The only point urged by the learned Counsel for the Petitioner is that the representations of the Petitioner were received by the District Magistrate on 22-1-1993 and on the next day both the representations were sent by the District Magistrate to the State Government without comments and ultimately on 3-2-1993 comments were sent by the District Magistrate Thus, from the above facts it has been urged that the comments were sent to the State Government after a delay of 11 days beginning from 22-1-1993 to 3-2-1993. Learned Counsel for the Petitioner has placed counter affidavit and made submissions that this delay of eleven days in sending the comments is fatal. It is urged that the delay has not been explained and, therefore there is violation of the provisions of Article 22(5) of the Constriction of India Under the circumstances detention order shall be rendered violative of Article 22(5) of the Constitution of India and continued detention thereafter shall also be illegal. Learned Counsel for the State has pointed out that the Petitioner (in jail) has at no place averred anything about the delay in sending comments and, therefore, in absence of a clear pleading the reply explaining the delay of 11 days could not be given. We have considered this argument and rejected the same. Perfect pleadings are not excepted from a citizen already in jail without record. In fact, a perusal of the petition shows that there is no specific averments regarding the delay but in the counter affidavit the District Magistrate and the State Government very fairly have brought it on record that the representation dated 21-1-1993 was received by the District Magistrate and was sent to the State Government on the same date. It was also fairly stated in the counter affidavit that on 21-1-1993 representation was received by the State Government without comments of the District Magistrate and, thereafter, counter affidavits disclosed that the comment were sent by the District Magistrate to the State Government on 3-2-1993 and was received by the State Government on 4-2-1993 These dates have been supplied in the counter affidavit although there was on averments in the writ petition. We feel that when a citizen is detained under Preventive Detection Act it is the duty and burden of the Sate Government and the detaining authority to bring every relevant fact supporting detention on record before this Court. We do not understand why delay was not explained in the counter affidavit when record was available to these The mordents in the counter affidavits have brought to the representation dated 21-1-1993 was received by the District magistrate and the same was received by the State Government on 23-1-1993 without comments of the District Magistrate and the comments were sent almost after 11 days on 3-2-1993, which was received by the stats government on 4-2-1993. The detaining authority could have given at least some explanation for sending the comments after 11 days. Once such explanation has not been offered the irrespective conclusion will be that pendants had not explained delay. In view of the above facts and circumstances we are of the opinion that the unexplained delay in sending the comments by 11 days is wholly illegal and is violative of the provisions of Article 22(5) of the Constitution of India.

In the result his Habeas Corpus Petition succeeds and is allowed. The impugned detention order dated 4-1-1993 is quashed and the Respondents are directed to release the Petitioner forthwith and set him at liberty unless required in some other case. However, there shall be no orders as to cost.